The Supreme Court has spoken on the Office of the Special Prosecutor. It saved the OSP, but Ghanaians on the streets, in trotros, and on social media are asking a deeper, more political question:
If the Attorney-General is a politician appointed by a politician, will he ever apply nolle prosequi fairly, especially in cases concerning his own party people?
That is the real fear behind the Supreme Court judgment.
WHAT THE COURT DECIDED
As reported earlier, the Supreme Court granted only Relief (a) – that prosecutorial power in Ghana resides in the Attorney-General under Article 88 – but dismissed the six other reliefs that sought to declare the OSP Act unconstitutional and kill the OSP.
The Court affirmed that:
– Act 959 is constitutional,
– OSP can prosecute without a fresh fiat from the AG,
– OSP can itself discontinue its own cases,
– All OSP cases before April 15, 2026 remain valid.
But the Court also clarified that the Attorney-General retains his overarching constitutional nolle prosequi power under Article 88(3) to discontinue any criminal case in Ghana, including those filed by the OSP.
On paper, that is sound constitutional law. In practice, Ghanaians say it is dangerous.
THE PROBLEM: THE ATTORNEY-GENERAL IS A POLITICIAN
Here is the fact that the law books do not say but every Ghanaian knows.
In Ghana, the Attorney-General is not an independent legal technocrat like in some countries. The Attorney-General is a politician. He is appointed by the President. He is usually a leading member of the ruling party, often an MP, always a cabinet member who sits in cabinet meetings where political decisions are taken.
He serves at the pleasure of the President. If the President says go, he goes.
So when the Supreme Court says the Attorney-General retains the power to cancel any case, including OSP cases, through nolle prosequi, what it has technically done is to give a political appointee the key to the OSP’s prison gate.
Ghanaians are asking:
Will an NDC Attorney-General ever apply nolle prosequi to save an NPP person? No.
Will an NPP Attorney-General ever apply nolle prosequi to save an NDC person? No.
But more importantly, will an Attorney-General apply nolle prosequi to kill or withdraw cases concerning his own party people who are being prosecuted by the OSP?
That is where the fear is. The OSP was created precisely because Ghanaians did not trust the Attorney-General’s office to prosecute its own party members. That is why Act 959 made the OSP insulated.
If you take away that insulation and say the AG can cancel OSP cases, then you have taken us back to square one.
HISTORY HAS PROVED GHANAIANS RIGHT
Look at our history.
Since 1992, how many times has an Attorney-General entered nolle prosequi in cases involving members of the ruling government?
Almost never. In fact, it is the opposite. Nolle prosequi has often been used to set free members of the ruling party.
When the OSP was prosecuting former government officials for corruption and the Attorney-General’s office was seen to be reluctant, that was why the public hailed the OSP.
Now, with this judgment, what stops a future Attorney-General from simply waiting for the OSP to do its investigation, file the case, and then quietly enter nolle prosequi to free his party faithful in the name of “public interest”?
The Constitution says nolle prosequi must be in the public interest, but who defines public interest? The same politician Attorney-General.
He does not need to give detailed reasons in court. He just files it and the accused is discharged. That is the law.
WHAT GHANAIANS WANTED
What Ghanaians wanted the Supreme Court to say was that once the OSP files a case, only the OSP can withdraw it. Not the AG.
That would have guaranteed true independence. That would have assured Ghanaians that if you steal when your party is in power, you will still be prosecuted because the AG cannot save you.
But by reaffirming the AG’s overarching power, the Court, while saving the OSP legally, has weakened it politically.
THE WAY FORWARD
Legal experts say there are only two ways to cure this political fear.
First, Parliament must amend Act 959 to require that any nolle prosequi by the Attorney-General in an OSP case must be with the express written consent of the Special Prosecutor or must be approved by the Supreme Court or Parliament.
Second, and more radically, Ghana must move towards an Independent Attorney-General and a separate Minister of Justice, as many have advocated. Let the Minister of Justice be the politician who goes to Cabinet, and let the Attorney-General be an independent lawyer who is not a party person and who can apply nolle prosequi without fear or favour.
Until that is done, the fear will remain: The OSP can investigate and prosecute, but the Attorney-General, who is a politician appointed by a politician, holds the ultimate power to cancel the case, and he is not going to use that power against his own party people.
The OSP has been saved by the Court, but it is still on a political leash.
Alexander Afriyie, supervising editor, ghanacrimereport.com and ghanatalk.com